New York’s Chief Judge Agrees: Bail is Busted

February 5, 2013

In his annual “State of the Judiciary” speech, New York’s chief judge Jonathan Lippman covered a wide range of topics, from juvenile justice to mortgage foreclosures to cameras in the courtroom. But one topic in particular caught our attention: bail.

As we wrote in our cover story last spring, bail in New York is an incredibly discriminatory and unjust institution that puts thousands of innocent people in jail each year for no other reason than that they are too poor to make bail. For many more New Yorkers, prosecutors’ threat of bail forces them to plead guilty to charges that they would otherwise fight and beat. In short, Bail is Busted.

Refreshingly, Lippman said the same thing in his speech today, though his phrasing was slightly more diplomatic: “We still have a long way to go before we can claim that we have established a coherent, rational approach to pre-trial justice.”

“Our overriding goal must be to ensure that pre-trial detention is reserved only for those defendants who cannot safely be released or who cannot be relied upon to return to court — and to do all we can to eliminate the risk that New Yorkers are incarcerated simply because they lack the financial means to make bail. More than simply being unfair, incarcerating indigent defendants for no other reason than that they cannot meet even a minimum bail amount strips our justice system of its credibility and distorts its operation. Jailing defendants before trial can subject them to economic and psychological hardship, limit their ability to assist in their defense and place them at a serious disadvantage in the plea bargaining process.”

To achieve this goal, Lippman recommends expanding supervised release programs like the one currently being tested by the New York Criminal Justice Agency in Queens. He also takes a swipe at the bail bond industry, noting that bail bondsmen for the most part won’t even work with people held on low bails because they can’t make enough money from them. Lippman contemplates what it would take to remove the profit motive entirely from the process of getting people out of jail, and name-checks the Bronx Freedom Fund, an experimental nonprofit that sprung hundreds of people from jail before a judge forced it to shut down. (As we wrote in our follow-up story, the Bronx Defenders, who ran the fund, had the last laugh, successfully pushing through legislation last summer that makes it much easier to legally run a non-profit bail fund.)